83 Wis. 206 | Wis. | 1892
This judgment must be reversed for manifest error upon the trial. The theory of the defense is that McBean shot Felix in self-defense. It is undisputed that, after the row in the barroom, McBean went into the kitchen and closed the door; that while there he was informed that Felix was coming downstairs with a gun or revolver; that about the same time he heard Felix’s revolver discharged upstairs; that very soon thereafter Felix and his brother, Alexander, came downstairs, when Felix’s revolver was again discharged. It was a very important question, upon
It further appears from the record, certified by the trial judge, that after the jury in the cause had been out deliberating upon their verdict for several hours, and finding
Had the learned trial judge, during the delivery of his charge or at its conclusion, and in open court, given such -an answer to such a question put by a juryman, no one, we apprehend, would have contended that it was not error. No attempt has here been made to justify such an answer to such a question. It is said, in effect, that such communications are not made to appear by competent evidence, since no affidavit of the person in charge of the jury was presented. But the judge who certified to the record necessarily knew whether he had received any such communication from the jury, and also -whether he answered it in the way stated; and the affidavits of the jurymen show that they received such answer.
It is contended that such affidavits of jurymen were inadmissible in evidence under the ruling of this court in Edmister v. Garrison, 18 Wis. 594. It was there held that the affidavits of jurors to their own misconduct cannot be received to impeach their verdict. Such is, undoubtedly, the general rule. But to arbitrarily exclude all such affidavits, whenever they directly or indirectly affect the verdict, would be a gross wrong to jurymen as well as parties, and would frequently defeat the ends of justice. Thus,
The question put by the jury to the trial judge in the case at bar was, .in and of itself, harmless. The error con
There may be other errors in the record, but, if so, they are not likely to be repeated, and need not, therefore, be here considered.
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial. The warden of the state prison will surrender the plaintiff in error to the sheriff of Oneida county, who will hold him in custody until he shall be discharged or his custody changed by due course of law.